Summary: We will not investigate this complaint about the Council’s handling of Mrs K’s residential care charges and about information about care charges from the Trust. This is because we are unlikely to find fault by the organisations, and we are unlikely to be able to add anything to the investigations already completed.

The complaint

1. Mrs P complains Durham County Council (the Council) charged her late mother Mrs K for her residential care and support despite telling them this care would be free. She also says Tees, Esk and Wear Valleys NHS Foundation Trust (the Trust) told them there would be no charges for care until a financial assessment was completed and they had agreed any care costs.
2. Mrs P says the Council has issued a bill for £3,800 for residential care charges and she wants this to be waived.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. If it has, they may suggest a remedy. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, if there is a conflict of evidence we reach our views based on the balance of probabilities. This means we will weigh up the available relevant evidence and decide what we think was more likely to have happened.
6. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the organisations.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I have considered written evidence from Mrs P including her complaint documentation. I have also considered written evidence from the Council and Trust including complaint records and records from the Council’s adult social care team. I have also considered relevant law and guidance.

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What I found

Background

8. Mrs K went into hospital in late April 2022 due to problems with her leg. In early May a social worker assessed Mrs K’s needs and decided she would benefit from a period of Intermediate Care after discharge from hospital, to give her time to recover and to receive therapy in readiness for a return to her own home.
9. Intermediate Care, including reablement, is a free short-term service, to help a person recover and increase their independence after they have been in hospital. It is free of charge for up to six weeks. Councils may charge for care and support when services are provided after the first six weeks. (Regulation 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
10. Mrs K was discharged from hospital to an Intermediate Care bed in a residential home on 7 May 2022. Mrs K stayed at the residential home on a temporary placement from 18 June onwards. On 12 October a social worker assessed Mrs K and decided she should have a permanent residential care placement. Mrs K agreed with this decision and said she would like to stay at the residential home permanently.
11. Mrs K died on 16 November 2022. Mrs P said shortly after her mother’s death she received a bill for her mother’s care charges in the residential home. Mrs P complained about the bill as she said her mother had not been made aware of any charges for her care whilst she was in the home from May 2022 until her death. She said if her mother had known she would be charged over £900 per month for her care and support, she would have insisted on going back to her own home with some help. She said it was not acceptable to charge retrospectively without her mother knowing what the charges would be.

Complaint responses

12. The Council said its records showed Mrs P was told her mother was going to be admitted to an Intermediate Care placement that would be free of charge for up to six weeks, and Mrs P had agreed with this. The Council also said it was clear from its records that Mrs P was aware that care would not be free after the initial six period.
13. The Council said a social worker tried to contact Mrs P several times about charging for the placement once the initial six weeks had ended, but did not make successful contact until 5 July 2022 despite leaving messages and sending a text. The Council said Mrs P ended the call on 5 July before the social worker could go through the necessary information about the ongoing placement. The Council said it sent a letter to Mrs K at the residential placement the next day, about charging for services after a period of Intermediate Care has ended.
14. The Council said it had spoken with the residential placement during its investigation of the complaint, and the placement said post would have been passed to a family member to consider on Mrs P’s behalf or in conjunction with her.
15. The Council said a social worker met with Mrs P and Mrs K in October 2022 to discuss plans for Mrs K to stay at the residential placement permanently. The Council said its record of that meeting include that the social worker discussed charging with Mrs K and Mrs P. The Council also said its records show that Mrs K had capacity to understand and make decisions about her finances.
16. The Trust said it was unable to find any evidence that its staff had spoken with Mrs P about the cost of Mrs K’s placement. It said discussions about care charging are the responsibility of the allocated social worker (working for the Council).

Records, and law and guidance

17. I asked the Council to send me copies of its records so I could see whether these supported the responses it had given to Mrs P’s complaint. The records say that on 5 May 2022 a social worked told Mrs P her mother might be eligible for free intermediate care but that if she was not, her temporary placement in residential would be a chargeable service.
18. The records also say that on 5 July a social worker tried to speak with Mrs P about the placement and decisions to be made but that Mrs P ended the call saying it was not a convenient time. The records show that a letter was sent to Mrs K on 6 July which said the period of free intermediate care had ended, that she had been assessed as needing ongoing care and support, and she might be required to pay towards this. The letter said Mrs K would be offered a financial assessment.
19. The Council’s records say Mrs K and Mrs P were made aware that Mrs K would need to have a financial assessment and may have to contribute towards the costs of her residential care.
20. The Council said it could not waive the charges for Mrs K’s care as information was given to Mrs K and Mrs P that the placement might be charged for, and Mrs P was given the outcome of the Council’s financial assessment in a letter in November 2022.
21. A council can choose whether to charge a person when it is arranging to meet their needs. Once a council has worked out the care and support someone needs, it carries out a financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance. This assessment works out whether the person needs to contribute to or pay for the cost of their care or whether the council will pay for some or all of the care costs.
22. The Trust is correct in saying that information about charging for adult social care support in a residential home is the responsibility of the council, not the NHS.

Analysis

23. I have carefully considered all the evidence, including Mrs P’s account and records from the Council and Trust. It is clear Mrs P feels strongly about this matter. Her views about what the family was told about plans for Mrs K’s ongoing care and how this would be paid for differ from those of the Council and Trust. It is difficult for us to resolve these conflicting accounts. Where there is a conflict of evidence we reach our views based on the balance of probabilities.
24. The evidence I have seen indicates the Council provided clear information to Mrs P and Mrs K a number of times that Mrs K’s care after the initial period of Intermediate Care would not be free. This information was provided from May 2022 onwards. The documents also show the Council said it would need to carry out a financial assessment to decide whether Mrs K needed to pay for some or all of her ongoing care and support.
25. It is my view that, on balance, Mrs P and Mrs K were not told her ongoing care and support would be free. The written evidence from the organisations says Mrs K and Mrs P were told a financial assessment would be done to decide how much Mrs K needed to pay. I appreciate that Mrs P disputes this. I cannot know for certain what happened.
26. Based on the evidence I have seen, we are unlikely to find fault by the Council or the Trust. We are also unlikely to be able to add anything to the investigations already carried out, due to the conflicting evidence from Mrs P and the organisations.

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Final decision

27. We have decided not to investigate Mrs P’s complaint about the Council’s handling of Mrs K’s residential care charges and about information about care charges from the Trust. We are unlikely to find fault by the organisations, and further investigation of the complaint is unlikely to achieve more.

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Investigator's decision on behalf of the Ombudsman